Thoughts of an activist lawyer

Prof. Roque : China an Agressor Under International Law

That was how Professor Roque characterized China based on its actions regarding the West Philippine Sea dispute in a speech on “Borders and Cross-Border Enforcement” at a forum at Harvard Law School.

“China has resorted to unlawful use of force to advance its claims to vast amount of waters in the West Philippine Sea and has shunned a peaceful means to settle its territorial dispute with the Philippines,” stated Roque.

Roque is a professor at the UP College of Law and the Director of the Institute for International Legal Studies. Other notable speakers in the forum include Associate Justice Francis Jardeleza, who was Solicitor General of the Philippines and UP College of Law professor before assuming his role in the Philippine Supreme Court.

The actions by the Chinese government, including the employment of Chinese ships to patrol the area and the building of artificial islands in low-tide elevations, are said to be part of China’s Blue Naval Strategy in its bid to become a world sea power. Claiming that these acts are transgressions on national maritime territory, the Philippine government initiated arbitration with China in January 2013 under the provisions of the UN Convention on the Law of the Sea (UNCLOS).

However, China has snubbed proceedings, and while having commissioned the submission of a de facto counter- memorial, insists that it will not be bound by the outcome of the arbitration.

Acts of China Illegal under International Law

Prof. Roque has long been outspoken against China’s refusal to arbitrate, as well as its illegal acts of encroachment on Philippine maritime territory.

“The international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the ‘constitution for the seas’,” Roque stated. “It was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory.”

In his speech, he listed down acts which constituted the use of force, in violation of the UN Charter prohibiting the threat or use of force against the territorial integrity or political independence of any state. This included China using its Navy in forcibly taking possession of Mischief Reef, and its Armed Coast Guard in wrestling possession of Scarborough Shoal from
the Philippines. It has also been driving away Filipino fishermen from the area, using water cannons.

Some of these fishermen have since appealed to United Nations Commission on Human Rights against China for violations of human rights, particularly right to livelihood, right to life, and their right to the places of refuge for ships in distress, in accordance with the right to life.

In addition, Prof. Roque stated that China’s actions in regularly warning military action against all other claimants to the disputed Spratlys and Paracels group of islands, its Navy boats escorting armadas of Chinese vessels fishing in the disputed waters, and accosting survey vessels even in the undisputed waters of Recto Bank all consist of threats, similarly violative of international code of maritime conduct.

He also attacked Chinese installations of artificial islands on low tide elevations.

“These constructions are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so,” Prof. Roque said. “Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptuous of the proceedings.”

Discrediting China’s Defenses

Despite claiming that it will not be bound by the arbitration proceedings, China outlined its defences in a de facto counter-memorial submitted to the UNCLOS body.

China claims that the 9-dash line based on ancient title.

But Prof. Roque said that there is no truth to the ancient claim, as China was silent on its 9-dash lines for more than 50 years.

“The 9-dash lines, while initially articulated by Taiwanese academics in the 50’s, was only resurrected in 2009 as part of China’s opposition to joint application of Vietnam and Malaysia for an extended continental shelf,” Roque explained.

But even if ancient claims exist, Prof. Roque stated that it was insufficient basis to hold that the disputed maritime territories belong to China.

“Furthermore, recognition of historic waters is limited to fishing rights and not settling territorial disputes,” he added.

“China’s resort to the use of force in lieu of peaceful arbitration,” Prof. Roque concluded, “proves that it is today the same hegemonic and colonial state that Mao and the rest of China rejected in their People’s Revolution.”